Republicans, Scalia, Garland, and the Future of the Supreme Court

Justice Antonin Scalia’s unexpected death on Feb. 13 has significantly altered the landscape of the 2016 presidential election, leading the remaining candidates of both political parties to zealously praise or condemn our outgoing president’s handling of the matter.

As with any issue in today’s hyper polarized political climate, many leading Republican figures contested the president’s constitutional duty – including presidential candidates and current senators, Ted Cruz and Marco Rubio, alongside senate majority leader Mitch McConnell, who have repeatedly vowed to strike down any Obama judicial appointment that comes his way prior to the 2016 election. Donald Trump, the party’s current frontrunner, also stated the president should wait until the impending election to decide on Scalia’s successor, though he did concede that if he were president, he would do everything in his power to fill in the vacancy as is his constitutional right.

While President Obama has every right to go about nominating a justice, the Republicans are not entirely in the wrong for maintaining that such an act would be unprecedented given the extraordinary circumstances surrounding Scalia’s untimely demise. This however does not justify their total disregard for the Constitution by straightaway refusing to allow Merrick Garland, President Obama’s Supreme Court nominee, to have a proper hearing. Though the spirit of our times may be typified by political intransigence, in their actions the Republicans are effectively usurping the president’s power to nominate justices for reasons strictly ideological.

For the sake of our constitution, the conservative movement, and the wellbeing of our country at large, it is imperative Republicans in the senate allow Judge Garland to at the very least be granted a proper hearing, even if they decide to ultimately vote against his nomination.  

There have only been a handful of cases over the past 60 years in which a president decided on a judicial appointee in the last year in office. Critics of Republican Senatorial leadership have pointed to the example of Anthony Kennedy, who was officially appointed to the Supreme Court in 1988 during Ronald Reagan’s final year in office. The difference, however, was that Reagan had actually nominated him late in 1987, only after his first two nominees – Robert Bork and Douglas Ginsburg – were struck down by the Democratic-led Senate, who perceived the former too conservative while the latter was marred by allegations of marijuana use.

The other two most recent historical examples happened in 1956, when Justice Sherman Minton resigned in the final weeks of Eisenhower’s first term in office. Eisenhower resorted to a tactful procedure called a “recess appointment” when he nominated Justice William Brennan Jr. to the Supreme Court. In this case, Justice Brennan was elevated immediately to fill in the court’s vacancy, an uncommon feat that occurs only when the senate is not in session. Usually the goal of doing so would be a temporary remedy for the remainder of the judicial term, thereupon following an official decision by the senate for a more permanent fix.

Eisenhower was lucky; in the aftermath the Senate upheld his nomination, which allowed Brennan to enjoy a lengthy tenure, the seventh longest in Supreme Court history. (As a strange turn of events, Brennan would adopt evolutionist jurisprudence and later become known for many of his progressive decisions, to the chagrin of his appointer.)

The most analogous historical parallel over the past half-century may be LBJ’s nomination of Justice Abe Fortas in 1968, which was met by a senatorial filibuster. Unlike Scalia, Abe Fortas was nominated due to a vacancy caused by a resignation —not a death – and Johnson, the outgoing president, had recently decided against running for another term in office given the ongoing crisis in Vietnam, though doing so would not have been unconstitutional. Though the odds were extremely slim, LBJ could have theoretically won a second term in office, which provided him with a sort of credibility our current president lacks having already nearly finished his second term.

However you look at it, the logic remains shaky and historical precedent has been insufficient to completely undercut Obama’s constitutional power to have gone through with choosing a nominee. His consensus selection of Merrick Garland, who once was confirmed in a 76-23 vote by a Republican-controlled senate in 1997 when then president Bill Clinton appointed him to the D.C. Circuit, only strengthens his case to be granted a proper hearing by the United States Senate.

The case against Garland is twofold. Even if Obama had appointed a clone of any conservative justice currently on the court, with the exception of Clarence Thomas, the Supreme Court would inevitably shift ideologically leftward given Scalia’s uniquely dogmatic conservatism. He was long a towering figure of conservative jurisprudence, pioneering a “textualist” approach in cases of statutory interpretation and most famously, a monolithic brand of constitutional originalism that to his detractors was stubbornly archaic.

Merrick Garland is no Antonin Scalia. Republicans have legitimate concern to how he might rule in such issues as abortion and second amendment rights. Still, Garland has a right to be given a proper hearing and senate Republicans ought to carry out their duties and give him one. If they feel it is inappropriate for President Obama to be doing this in an election year, they are free to voice their dissatisfaction with a “no” vote in the confirmation hearings.

President Obama is right in pointing to the blatant hypocrisy between Republicans who froth over remaining true to the constitution but only in cases that are politically expedient to them. The Supreme Court has become more and more politicized due to unjust politicking of both major parties – in the days leading to Scalia’s death, Chief Justice John Roberts commented on how the three most recent justices – Alito, Sotomayor, and Kagan, respectively – all received unduly politicized hearings. The institution once designed to remain apolitical has taken onto a degenerative trajectory, ostensibly following the same course of inefficiency as the congress. This unseemly trend will only be reversed if both major parties are reminded of their constitutional responsibilities, and thereby respect the institution as not a political forum, but a serious branch of government that is to remain isolated from party politics altogether.

By ignoring the constitutional process described above, Republicans would simply be adding to this country’s extant political divisions. Republicans should also recognize that for their sake, it would in fact be politically expedient to confirm Merrick Garland to the Supreme Court. In the worst-case scenario, Republicans don’t confirm Garland and then come November, Hillary Clinton or Bernie Sanders is elected president of the United States. A Democratic victory in the general election might also spell trouble for the current Republican-controlled senate, which can foreseeably switch hands to a Democratic majority. Thus, the next president would have no restrictions on his or her ability to choose an even more liberal justice to advance their agenda, which would be a significant blow to the conservative movement.

The alternative would be for a Republican to win the general election. Even if the Senate does not maintain its Republican majority, over the next four to eight years it is very likely that at least three current justices will retire – Kennedy, Ginsburg, and Breyer — who are now 79, 83, and 77, respectively. Ginsburg and Breyer are both liberal, and Kennedy, the lone conservative, is considered to be the most liberal of the four sitting conservative justices. In any case, Merrick Garland’s confirmation would be effectively taking the role of Anthony Kennedy, but slightly more liberal. If all goes according to plan, a Republican president can plausibly replace two current liberal justices with two conservatives, thus significantly driving the ideological makeup of the court to the right. The impact of a short-term tradeoff for Merrick Garland can potentially bolster the conservative movement for many years to come, a scenario that should be seriously considered by current Republicans.  

The Republican brand has been tarnished more than ever throughout this calamitous presidential election. Republican senators have done little to help their cause by fighting against President Obama’s judicial nomination. They should for once recognize that they would be doing more damage to both the conservative cause and more importantly, the country by continuing their blockade on Obama’s every move.

It does not look good for the same do-nothing Republican establishment to be blocking the Supreme Court nominee, all while concurrently attempting to prevent their own party’s likely nominee from securing enough delegates to establish some semblance of unity. If they continue at this rate, the Republicans will wind up with a Democratic president, a Democratic congress, and an extremely liberal court that can tremendously destabilize the conservative movement for many years to come. If Republicans truly care about principle over politics, the legacy of Antonin Scalia, and the future of the conservatism in the United States, the ball is in their court. They now have the ability to rise above the unpalatable tides of political debauchery and establish a noble standard of magnanimity now unseen in modern politics.